Letter writer: In inclusive world, we must legally embrace all

Graphic by Lori Deaton

It all started a couple of months ago when the city of Charlotte passed an anti-discrimination law which was intended to prevent exclusion and general meanness against persons who are other than heterosexual (forgive me, but today there are so many exceptions to male/female that “all else” must be used for conservation of ink).

One of the protections this law provided allowed men and women to use each other’s bathrooms, locker rooms, public showers and any other quarters intended for purposes which expose their naughty bits. Understandably, this was considered anathema by many, for reasons I do not wish to consider specifically.

Generally, the reason is that traditionally the men’s room is for men and the women’s room is for women. You know, once upon a time, it was considered perfectly normal for white persons and black persons to be relegated to separate facilities.

Perhaps the time has come to get rid of the separation of the sexes and make all public bathrooms unisex. This would take some getting used to, but I feel it ultimately would simplify the use of public space, and I think we are ready for it.

Then the state of North Carolina stepped in (it) and overruled the Charlotte ordinance: first, by saying that there shall be no local ordinances — that only statewide ordinances are valid — then by rewriting the state’s anti-discrimination code to offer protection against unfair treatment on the basis of age, race, sex or disability. It seems a slap in the face to so blatantly exclude protection on the basis of sexual orientation/gender identity.

Apparently, this is interpreted to mean that the law allows, or even encourages, discrimination against nonheterosexuals. I would like to point out it also does not include protection against discrimination on the basis of “cleanliness,” nor “dietary habits,” nor “fashion sense.” This could prove to be quite devastating to Asheville in particular.

It is obvious that equal protection for all cannot be itemized in a law without naming every person and his peculiarities. I do not understand why the law does not simply state that “no person shall be denied access to the privileges of society.” In a truly inclusive world, we must legally embrace all persons, no matter how much they might offend some individuals.

That said, the HB2 law does not say that everyone not mentioned as protected must necessarily be discriminated against. Chances are that [there] will be no difference in the way persons of various lifestyles are treated, no matter what the law says. It is a stupid law made by stupid legislators. But they deserve jobs, too.

— Tom Cook
Asheville

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31 thoughts on “Letter writer: In inclusive world, we must legally embrace all

  1. boatrocker

    Here’s a question- what is the incidence of men dressed as women sullying underaged females in unisex bathrooms in Europe?

    I know Europe ain’t ‘Merica because they eat weird food and talk funny in different non ‘Merica languages and call soccer futball (some of them even drive on the wrong side of the road!), but does anyone have statistics on this?

    Thanks, Reagan for hijacking the GOP back in the 80’s and finally showing us that God and Jesus are Republicans.
    I find the pro arguments to hb2 disgusting, bigoted and coming from uneducated points of view (and I’m tired of it- why can’t we focus on something more positive like the upcoming election? – Earth humor).

    I also get to claim ‘I told you so’ for the slope becoming slipperier. According to Daniel White, Time magazine- a driver who called a tow truck in Asheville recently was denied service by the tow truck operator for having a Bernie sticker on their car. The article also claims that one can be denied service in NC for political affiliations and it is legal! What?

    Yep, last week it was the color of your skin.
    Yesterday it is who you date or how you dress.
    Today it is your political opinions.
    Tomorrow it will be the books checked out on your library card and your Netflix que.
    Next week your children will narc on you to the school cop for what they heard you saying about McCrory at the dinner table.

    I totally called this for parodying Pastor Martin Niemoller’s famous poem that must not have been covered in NC schools.
    Trust me- this is rather a hollow victory for being able to say ‘I told you so’.

    Congrats, NC, on your state sponsored religious theocracy akin to Shari law, or as we the people call it- Y’all Qaeda.

    I’m a male, and ‘identify’ as such, but I’m going to piss in the sink of any and all public men’s restrooms as a sign of protest from now on.
    You might want to avoid the sinks and bring your own wet naps in public mens’ rooms around here.

    I’d like to be known as the Peeing Avenger, if you please.

    • DreadT

      boatrocker said “I’m a male, and ‘identify’ as such, but I’m going to piss in the sink of any and all public men’s restrooms as a sign of protest from now on.
      You might want to avoid the sinks and bring your own wet naps in public mens’ rooms around here.”

      I feel your frustration. Let the sink peeing protest begin!!!

      • boatrocker

        Maybe I’ve been doing that all along, yet now have a cause. (evil laugh)
        I’d invite others to do the same.

  2. bsummers

    But they deserve jobs, too.

    Just not necessarily the ones they have now.

  3. “Generally, the reason is that traditionally the men’s room is for men and the women’s room is for women.”

    Sex-segregated accommodations is also the federal standard provided for in Title IX:

    § 106.33 Comparable facilities.
    A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.

    § 106.2 Definitions.
    (i) Recipient means any State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives such assistance, including any subunit, successor, assignee, or transferee thereof.
    http://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr106.html

  4. “first, by saying that there shall be no local ordinances”

    This is a false statement. HB2 said nothing about the general ordinance-making authority of local governments. The law specifically preempts an illegal municipal ordinance passed by the City of Charlotte, and it further barred other municipalities in the state from repeating Charlotte’s mistake.

    North Carolina is not a home rule state. Cities have only the authority explicitly granted to them by the state legislature. This form of government was established under Democrats long ago.

    Cities retain the general ordinance-making power granted to them by the state in N.C.G.S. 160A:
    http://www.ncleg.net/gascripts/statutes/statutelookup.pl?statute=160a-174

    • Peter Robbins

      I believe the letter was referring to local nondiscrimination ordinances in particular, not local ordinances in general. Language, no matter how plain, depends on context.

  5. “then by rewriting the state’s anti-discrimination code to offer protection against unfair treatment on the basis of age, race, sex or disability.”

    This statement is false. North Carolina anti-discrimination laws were introduced in 1977 in Senate Bill 459.
    http://www.ncleg.net/EnactedLegislation/SessionLaws/HTML/1977-1978/SL1977-726.html

    House Bill 2 (Part III, Section 3.1) amended the law to clarify that the term ‘sex’ is intended to mean a person’s ‘biological sex.’
    http://www.ncleg.net/Sessions/2015E2/Bills/House/PDF/H2v4.pdf

    • Peter Robbins

      I believe the statement is substantially true. HB2 rewrote statewide nondiscrimination protections by making them applicable to public accommodations and then put the word “protections” in quotation marks by forbidding any private enforcement action in state court, including the one that had previously existed for employment discrimination.

  6. ” It seems a slap in the face to so blatantly exclude protection on the basis of sexual orientation/gender identity.”

    House Bill 2 allows cities and private businesses to establish policies for their own employees that explicitly offer protection on the basis of sexual orientation/gender identity. What HB2 does not permit is cities setting non-discrimination policy for private businesses in their jurisdictions. HB2 clarifies that non-discrimination policy in North Carolina should be established statewide in a uniform manner by the General Assembly.

  7. “Apparently, this is interpreted to mean that the law allows, or even encourages, discrimination against nonheterosexuals.”

    This statement is false. House Bill 2 says nothing about “nonheterosexuals,” much less about discriminating against them.

    • Peter Robbins

      No, the statement is true. The law allows what it does not prohibit. And because the law excludes LGBT people from protections that thinking legislators would have extended to that class, it arguably encourages mistreatment by example.

  8. ” It is a stupid law made by stupid legislators.”

    If that is true, then these must be stupid court rulings made by stupid judges:

    Johnston v. Univ. of Pittsburgh of Com. Sys. of Higher Educ. (Western District of Pennsylvania – 2015): “[N]early every federal court that has considered the question in the Title VII context has found that transgender individuals are not a protected class under Title VII.”

    Lopez v. River Oaks Imaging & Diagnostic Grp., Inc. (Southern District of Texas – 2008): “Courts consistently find that transgendered persons are not a protected class under Title VII per se.”

    Etsitty v. Utah Transit Auth. (10th Circuit – 2007): “[This Court] concludes discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII.”

    Sweet v. Mulberry Lutheran Home (Southern District of Indiana – 2003): “Discrimination on the basis of sex means discrimination on the basis of the plaintiff’s biological sex, not sexual orientation or sexual identity, including an intention to change sex.”

    Oiler v. Winn-Dixie La., Inc. (Eastern District of Louisiana – 2002) “After a review of the legislative history of Title VII and the authorities interpreting the statute, the Court agrees… that Title VII prohibits employment discrimination on the basis of sex, i.e., biological sex. While Title VII’s prohibition of discrimination on the basis of sex includes sexual stereotypes, the phrase “sex” has not been interpreted to include sexual identity or gender identity disorders.”

    Ulane v. E. Airlines, Inc. (7th Circuit – 1984): “While we recognize distinctions among homosexuals, transvestites, and transsexuals, we believe that the same reasons for holding that the first two groups do not enjoy Title VII coverage apply with equal force to deny protection for transsexuals.”

    Sommers v. Budget Mktg., Inc. (8th Circuit – 1982): “Although this circuit has not previously considered the issue raised on this appeal, we are in agreement with the district court that for the purposes of Title VII the plain meaning must be ascribed to the term “sex” in absence of clear congressional intent to do otherwise. Furthermore, the legislative history does not show any intention to include transsexualism in Title VII”.

    Powell v. Read’s, Inc. (District of Maryland – 1977): “A reading of [Title VII] to cover plaintiff’s [gender identity discrimination] grievance would be impermissibly contrived and inconsistent with the plain meaning of the words.”

    Grossman v. Board of Education (District of New Jersey – 1975): “In the absence of any legislative history indicating a congressional intent to include transsexuals within the language of Title VII, the Court is reluctant to ascribe any import to the term “sex” other than its plain meaning. Accordingly, the Court is satisfied that the facts as alleged fail to state a claim of unlawful job discrimination based on sex.” (This decision was later affirmed by the Court of Appeals for the 3rd Circuit.)

    • Peter Robbins

      What does the Fourth Circuit (which controls in our state) say?

      • Huhsure

        They sided with the transgender student in a recent ruling. If this goes to a 4-4 divided Supreme Court, the circuit’s decision would prevail.

        • Peter Robbins

          Party killer. I wanted give Mr. Peck the honor of admitting it. Last time the subject came up, he helpfully informed us that “precedent is just precedent,” apparently unaware of the more relevant tautology that “controlling precedent controls.”

          • bsummers

            Send all complaints to the Department of Redundancy Department.

          • Peter Robbins

            I heard they closed their local in-town Asheville office and moved to another state. One with fresh air.

    • Peter Robbins

      Since the restroom provisions of HB2 appear, for the moment at least, to be doomed, we may leave for another day the question of whether federal law, despite its comprehensive scope, has ever left state governments free to find “stupid” things to do. But I believe there is precedent.

      • Hasn’t the U.S. Court of Appeals for the 4th Circuit already made a ruling on this matter in the Gavin Grimm case?

        ATTORNEY ROBERT STEPHENS: “They have not. What happened in the 4th Circuit case was that a split panel, 2 to 1, made a decision that the District Court, the lower court, had used the wrong evidentiary standard in deciding the case. And that split panel sent the decision back (remanded) to the District Court to have the trial over again. No mandate was issued to the District Court. The District Court has not conducted any further proceeding and until that happens, it is not the law in federal courts nor is it the law in North Carolina. Secondly, we now know that the defendants in that case have petitioned the Fourth Circuit for a hearing ‘en banc’ — which simply means a hearing before the full 4th Circuit, all 15 judges. That petition was filed and that stayed everything up to this point. The 4th Circuit has not yet ruled on that, but until the 4th Circuit rules, that’s not the law of North Carolina”

        • Peter Robbins

          Oh, please. There wasn’t even a trial in the Grimm case. The district court dismissed the complaint, remember? Rest assured that the Fourth Circuit’s ruling on the meaning of civil-rights law will be followed by district courts in that circuit unless it is overturned by the full Court of Appeals or the Supreme Court. You can check back if and when the Fourth Circuit rules en banc. Till then see: http://www.huffingtonpost.com/ilona-turner/why-the-gavin-grimm-decis_b_9733828.html.

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